Master Services Agreement

(Last updated: July 3, 2018)

This Service Level Agreement (the “Agreement”) is made and entered into by and between TechChange, Inc. (“TechChange”), a District of Columbia corporation, and the company, organization, or individual that has executed a Contract with TechChange. This Agreement shall govern the Platform provided by TechChange for the Client as referenced herein and in such Contract.

TechChange has developed proprietary technology to host and maintain online learning platforms that allow individuals and organizations to provide training and other learning experiences to Students remotely.  Client wishes to use TechChange’s proprietary Platform for this purpose, and TechChange desires to grant Client such rights, all as set forth in this Agreement.

BY EXECUTING A CONTRACT, THE CLIENT EXPRESSLY ACCEPTS AND AGREES TO THE TERMS OF THIS AGREEMENT AS OF THE DATE SET FORTH IN THE CONTRACT. EACH PARTY WARRANTS AND REPRESENTS THAT ITS RESPECTIVE SIGNATORIES WHOSE SIGNATURES APPEAR IN THE CONTRACT HAVE BEEN AND ARE ON THE DATE OF SIGNATURE DULY AUTHORIZED TO EXECUTE THIS AGREEMENT.

1. Definitions

1.1 Client is the company, organization, or individual named above only, exclusive of parent companies, umbrella organizations, subsidiaries, successors or assigns, unless otherwise provided herein.

1.2 Course means the presentation of Course Content grouped as pertains to a certain area of knowledge.

1.3 Course Content means any information, data, documents, works of authorship, or other materials delivered by any means, including video, course materials, syllabi, and/or any other manner in tangible form.

1.4 End User means an individual accessing a platform supported by TechChange through Client.

1.5 Instructor means an individual charged with facilitating a Course.

1.6 Intellectual Property Rights means patent rights, trademark rights, copyright rights, trade secret rights, and any other intellectual property rights recognized by the law of each applicable jurisdiction.

1.7 Learning Record Store means TechChange’s proprietary store of Student learning data captured on the Platform and all code, data, and design used to collect, analyze, transmit and provide data.

1.8 Marks means trademarks, trade names, service marks, and/or service names to which TechChange or Client have a right, respectively.

1.9 Monthly Active Users means the number of Students who have used the Platform within a 30 day period. This does not include viewing marketing materials for Courses or applying for Courses.

1.10 Organization means the Client’s white-labeled domain on the Platform.

1.11 Platform means TechChange’s proprietary software platform and all code, data, and design used to transmit and provide Courses and Course Content to Students.

1.12 Student means an individual End User registered with the Client’s organization on the Platform.

2. Term

2.1 This Agreement shall be effective from the Effective Date, and shall continue until terminated, but in no event less than 12 months from the Effective Date.

2.2 This Agreement shall renew on its terms unless Client notifies TechChange of its intent to change or terminate this Agreement at least 60 days prior to the termination date.

2.3 TechChange reserves the right, upon notice to Client, to discontinue service under this Agreement, with or without terminating the Agreement, immediately in the event of non-payment of sums due hereunder, or within five (5) days of notice to cure any other material breach of the Agreement.

3. Content Development and Delivery

3.1 Course Content Development. Client will develop and produce Courses and related Course Content to be hosted on the Platform for access and use by Students in Courses. Client will designate a point of contact who will be the primary point of contact with TechChange regarding the development, creation, and administration of Course Content to Students. Client will be responsible for providing Course Content in a format that is compatible with the Platform.

3.1.1 Course Content must meet quality standards pertaining to usability, audio or video quality, and effective formatting and structure. Should TechChange find that Course Content is not materially compliant with Quality Standards or the framework of the Platform, TechChange will notify Client and Client shall work in good faith to correct the Course Content. Unless TechChange and the Client mutually agree on a different schedule, the first week’s worth of Course Content will be uploaded to the Platform at least two (2) weeks prior to the scheduled start date of the Course. The first two (2) weeks of Course Content will be uploaded by the beginning of the scheduled start date of the Course.

3.1.2 TechChange shall not be liable for delays resulting from nonconforming Course Content formatting. TechChange is under no obligation to alter, expedite or otherwise accommodate Client’s schedule in the event of a delay caused by Client.

3.2 Course Content Delivery. Client will have the right to access and use Platform, with TechChange’s mutual agreement, to offer Course Content to its Students. Client shall (i) manage the offering of Courses, (ii) administer the Course Content through the Administrative Panel, including creating, maintaining, and moderating discussion groups or forums, dates for and facilitating guest experts sessions (unless otherwise mutually agreed), (iii) create syllabi, (iv) appoint an Instructor for each Course, and (v) provide Students access to the Course through the Platform. It will be at the Client’s discretion to provide weekly email summaries of Course Content and engage with Students on a regular basis.

4. Hosting and Platform Access, Support, and Use Restrictions

4.1 Hosting and Platform Access. TechChange and Client will mutually agree to host Courses and Course Content through the Platform. TechChange will make the Platform available to Client and Students through one or more webpages made available on the TechChange Website. Client and Students use and access to any Courses via the Platform will be subject at all times to the TechChange Terms of Service and Privacy Policy, which may be updated and changed at any time, with or without notice. TechChange will provide Client with access to the Administrative Panel to manage Students, Courses, and Course Content. TechChange will also provide Client with technical support and training in connection with its use of the Platform.

4.2 Administrative Panel. TechChange will provide Client with access to the Administrative Panel. The Administrative Panel will allow Client to manage Students, create Courses, and create and manage all Course Content. Client will designate individuals who shall receive Administrative Panel access via unique credentials. Client will be solely responsible for ensuring the security of the credentials of all individuals granted access to the Administrative Panel and preventing unauthorized access to these credentials or use of the Administrative Panel.

4.3 Course Support and Training. TechChange agrees to provide training to course developers and technical personnel at the rate of set forth in the Contract. At a minimum, TechChange will provide Client training and assistance with online Course production techniques and general best practices. TechChange will develop and maintain a repository of techniques and materials for effective use of the Platform and provide Client with access to such repository. TechChange makes no warranty or promise that materials in this repository will address a specific need of Client, and reserves the right to add, subtract and/or alter and information contained therein or restrict the use of any information in the repository, without notice and with no impact on the right, obligations or duties under this Agreement.

4.4 Client Support. Client will provide its Students within the Organization with support for Course selection and questions about Courses and Course Content.

4.5 Reliability. TechChange shall maintain adequate infrastructure and stability to provide continuous access to the Platform, Courses and Course Content for Client and Students, in accordance with Section 4.6 below. Notwithstanding, TechChange shall not be in breach of the Agreement if TechChange is does not comply with Section 4.6 below, or in the event access to the Platform, Courses and Course Content is interrupted at any time and in any manner for which TechChange is responsible, provided TechChange takes reasonable action to restore access as soon as is practicable.

4.6 Service Level. TechChange will use commercially reasonable efforts to make the Platform available with a Monthly Uptime Percentage of at least 99% during any monthly billing cycle. “Monthly Uptime Percentage” means the uptime and accessibility of the Platform, calculated by subtracting from 100% the percentage of minutes during the month in which the Platform was Unavailable, excluding downtime resulting directly or indirectly from any Scheduled Downtime and events outside of TechChange’s reasonable control, including Force Majeure Events (as defined in section 12), interruptions to a Student’s network access or connection(s), third-party Internet service provider failure or delays or any defects or failure in any hardware or servers provided by the Student. TechChange will have up to two hours of scheduled downtime per calendar month for the Platform (including downtime for implementing patches or fixes) (“Scheduled Downtime”). TechChange will work in good faith to ensure that such Scheduled Downtime is at a time acceptable to Client. Should TechChange fail to make the Platform available as set forth above (“Unavailability”), it will, within 24 business hours of any notice of Unavailability by Client or Student, use commercially reasonable efforts to respond to and correct or restore any such Unavailability.

4.7 Technical Support. TechChange will offer technical support to Client during normal TechChange business hours of 9am-6pm Eastern, Monday through Friday. TechChange will respond to all support requests within 24 business hours, unless otherwise prevented by events outside of TechChange’s reasonable control.

5. Data Collection and Sharing

5.1 Analytic and Learning Data. TechChange will make available to Client certain individual and aggregate analytic and learning data regarding behavior and performance of Students in the Organization. This data will consist of all relevant Learning Record Store data collected within the Organization. Any such data will be available through the Administrative Panel or by request to TechChange. In connection with the Organization, the Client will have the right to collect and use all data obtained through the Learning Record Store on Students (individual and de-anonymized), subject to all applicable laws and in relation to the TechChange Privacy Policy.

5.2 Student Data Security. TechChange acknowledges that Client’s confidential data regarding Students is protected under both federal and state law. Neither party will release to any third party any personal information about any Student without having first obtained the prior written consent of the Student.

6. Payment

6.1 Fees for Courses. The fees payable by Client to TechChange for the use of the Platform, TechChange Website, Administrative Panel, related Course Content and any other service pursuant to this Agreement, is set forth in the Contract. The Course Fees are on a tiered, Monthly Active Student basis. Client will also pay TechChange for those services provided related to the development of Courses (“Development Fee”) and fees for Course developer training as well as training for support personnel (“Training Fees”) as provided in the Contract. If Client requires additional training or Course development outside the scope of this Agreement, TechChange and Client will mutually agree on a fee schedule as needed. All fees charged under this Contract are subject to change, upon 60 day notice to Client, but in no event more than once every twelve (12) months.

6.2 Payment Terms. TechChange will invoice Client at the end of each payment period as defined in the Contract. Payment for all fees invoiced shall be Net 30 days. Payment shall be made in United States Dollars. In the event sums due to TechChange are not paid within thirty (30) days of the receipt of the invoice, interest on the outstanding balance shall be charged at one and one half percent (1.5%) per month (18%APR) until paid in full. This is not a “paid when paid” agreement, and Client is obligated to pay under this Agreement without regard to the receipt by Client of funds from Students or other funding sources.

7. Intellectual Property

7.1 Authorized Use. Client will be solely responsible for reviewing, determining the need for, and obtaining any and all necessary licenses, waivers, and/or permissions with respect to any third-party rights for all Course Content provided under this Agreement, as well as all costs associated with same.

7.2 License to Course Content. Solely in connection with the offering of Courses and Course Content to Students through the Platform, Client hereby grants to TechChange an irrevocable, non-exclusive, royalty-free, worldwide license (a) to reproduce, distribute, transmit, publicly display and publicly perform Course Content in order to (i) show Course Content on TechChange’s server, and (ii) make available and display any such Course Content through the Platform and TechChange Website; and, (b) provide access to Course Content for Students.

7.3 Third Party Claims. Should either TechChange or Client receive a written notice from a third party alleging infringement of its Intellectual Property Rights arising from the Course Content on the Platform or be subject to a government investigation, the party will provide the other party with notice of the alleged infringement claim, and the Course Content pertaining to such claim may be removed from the Platform should it be determined based on further evaluation of such claim that the Course Content is infringing. Notwithstanding, TechChange has the right immediately to remove any suspected Course Content on the Platform upon receipt of notice of a claim of infringement, if, in TechChange’s sole and absolute discretion, TechChange believes in good faith that there is potential liability to TechChange if the alleged infringing Course Content were not to be removed, even if the Course Content is later proven not to be infringing.

7.4 Mutual Marketing License. Subject to the terms and conditions of this Agreement, TechChange and Client grant to each other a non-exclusive, non-assignable, limited, worldwide license, without the ability to sub-license, to use the name, brand name, trademarks, service marks and logos of the other party and any marketing and branding collateral provided by the party granting such a license solely in connection with the offering of Courses and Course Content to Students through the Platform and TechChange Website, and the marketing, promotion, and advertising thereof, unless otherwise mutually agreed upon.

7.5 Intellectual Property Ownership.

7.5.1 Course Content. All right, title and interest in and to Course Content and all Intellectual Property Rights relating thereto shall remain with Client, except insofar as any portion of such Course Content constitutes third-party material or is a derivative work of third-party Course Content, in which case, such portion shall be owned by the applicable third-party or its licensors.

7.5.2 Platform and TechChange Website. All right, title and interest in and to the Platform, related documentation, the TechChange Website, all TechChange authored content and any other information to which TechChange has claim and right, as well as all updates, modifications, enhancements, improvements, upgrades or corrections thereto or thereof, including any features added by TechChange thereto, and all related Intellectual Property Rights shall be exclusively owned by TechChange. Any changes, updates, or additional features added by TechChange for the Client, whether for free or paid, will be exclusively owned by TechChange.

7.5.3 Prohibited Practices. Client will not, and will not attempt, or cause to be attempted, to (i) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for the Platform or the TechChange Website, except and only to the extent applicable law prohibits or restricts reverse engineering restrictions, or (ii) copy, modify, adapt, alter, or create derivative works of the Platform or the TechChange Website. Notwithstanding the foregoing, any software, interface, or assessment feature created or developed solely by Client, and the Intellectual Property Rights relating thereto, will be solely owned by the Client, as applicable. To the extent the Client has any Intellectual Property Rights therein, TechChange is hereby granted an irrevocable, non-exclusive, royalty-free worldwide license to any such software, interface, or other feature for the term of this Agreement.

7.5.4 Client’s Duties. Client will use its reasonable efforts to protect TechChange’s Intellectual Property Rights and will report promptly to TechChange any infringement of such rights of which Client becomes aware.

8. Representation of the Parties

TechChange warrants to Client that TechChange has the power and authority to enter into and perform its obligations under this Agreement.  Client warrants to TechChange that Client has the power and authority to enter into and perform its obligations under this Agreement

9. Confidential Information

9.1 Client acknowledges that, in connection with this Agreement and its relationship with TechChange, Client may obtain information relating to the Platform or to TechChange Website, which is of a confidential and proprietary nature (“Confidential Information”).  Such Confidential Information may include, but is not limited to, trade secrets, know how, inventions, techniques, processes, programs, schematics, software source documents, data, customer lists, financial information, and sales and marketing plans or information which Client knows or has reason to know is confidential, proprietary or trade secret information of TechChange.  Client shall at all times, both during the term of this Agreement and in perpetuity after its termination, keep in trust and confidence all such Confidential Information, and shall not use such Confidential Information other than as expressly authorized by TechChange under this Agreement, nor shall the receiving party disclose any such Confidential Information to third parties without TechChange’s written consent.  Client further agrees to immediately return to TechChange all Confidential Information (including copies thereof) in Client’s possession, custody, or control upon termination of this Agreement at any time and for any reason. The obligations of confidentiality shall not apply to information which (a) has entered the public domain except where such entry is the result of Client’s breach of this Agreement; (b) prior to disclosure hereunder was already rightfully in Client’s possession; (c) subsequent to disclosure hereunder is obtained by the Client on a non-confidential basis from a third party who has the right to disclose such information to Client; or (d) is required to be disclosed pursuant to law or government regulation, provided Client uses reasonable efforts to give TechChange reasonable notice of such required disclosure and an opportunity to obtain an appropriate protective order.

9.2 TechChange acknowledges that, in connection with this Agreement and its relationship with Client, TechChange may obtain information relating to Client, which is of a confidential and proprietary nature (“Confidential Information”).  Such Confidential Information may include, but is not limited to, trade secrets, know how, inventions, techniques, processes, programs, schematics, software source documents, data, customer lists, financial information, and sales and marketing plans or information which TechChange knows or has reason to know is confidential, proprietary or trade secret information of Client.  TechChange, shall at all times, both during the term of this Agreement and in perpetuity after its termination, keep in trust and confidence all such Confidential Information, and shall not use such Confidential Information other than as expressly authorized by Client under this Agreement, nor shall the receiving party disclose any such Confidential Information to third parties without Client’s written consent.  TechChange further agrees to immediately return to Client all Confidential Information (including copies thereof) in TechChange’s possession, custody, or control upon termination of this Agreement at any time and for any reason. The obligations of confidentiality shall not apply to information which (a) has entered the public domain except where such entry is the result of TechChange’s breach of this Agreement; (b) prior to disclosure hereunder was already rightfully in TechChange’s possession; (c) subsequent to disclosure hereunder is obtained by TechChange on a non-confidential basis from a third party who has the right to disclose such information to TechChange; or (d) is required to be disclosed pursuant to law or government regulation, provided TechChange uses reasonable efforts to give Client reasonable notice of such required disclosure and an opportunity to obtain an appropriate protective order.

9.3 The foregoing obligation of confidentiality shall apply reciprocally for any information designated as Confidential Information by Client.

10. Indemnification

Client agrees to defend, indemnify and hold TechChange harmless against any third party demand, claim, action, cause of action, complaint, or other formal dispute against TechChange for losses, liabilities, damages and expense, including the fees of attorneys and other professionals, arising out of any acts or omissions of Client in connection with its activities under this Agreement, including, but not limited to those obligations under Section 7 of this Agreement. TechChange shall have the right to choose its own legal counsel for its defense.

11. Limitation of Liability

IN NO EVENT SHALL TECHCHANGE BE LIABLE FOR ANY INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR LOST DATA, OR ANY OTHER INDIRECT DAMAGES, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF TECHCHANGE OR ITS SUPPLIERS HAVE BEEN INFORMED OF THE POSSIBILITY THEREOF.  NOTWITHSTANDING ANYTHING ELSE HEREIN, ALL LIABILITY OF TECHCHANGE AND ITS SUPPLIERS UNDER THIS AGREEMENT OR OTHERWISE SHALL BE LIMITED TO THE MONEY PAID TO TECHCHANGE UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.

12. Force Majeure

Except for the obligation to pay monies due and owing, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party’s reasonable control, including without limitation acts of God, earthquake, labor disputes, shortages of supplies, riots, war, fire, epidemics, or delays of common carriers.  The obligations and rights of the excused party shall be extended on a day-to-day basis for the time period equal to the period of the excusable delay.

13. Notices

All notices required or permitted under this Agreement will be in writing and will be deemed given:  (a) when delivered personally; (b) when sent by confirmed facsimile (followed by the actual document in air mail/air courier); (c) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid (or six (6) days for international mail); or (d) one (1) day after deposit with a commercial express courier specifying next day delivery (or two (2) days for international courier packages specifying 2-day delivery), with written verification of receipt.  All communications will be sent to the addresses set forth on the signature page of this Agreement or such other address as may be designated by a party by giving written notice to the other party pursuant to this paragraph.

14. General

14.1 Choice Of Law. The validity, interpretation, and performance of this Agreement shall be controlled by and construed under the laws of the District of Columbia as if performed wholly within the District of Columbia and without giving effect to the principles of conflict of law.

14.2 No Waiver. No waiver of rights under this Agreement by either party shall constitute a subsequent waiver of this or any other right under this Agreement.

14.3 Assignment. Neither this Agreement nor any rights under this Agreement, other than monies due or to become due, shall be assigned or otherwise transferred by Client (by operation of law or otherwise) without the prior written consent of TechChange.

14.4 Severability. In the event that any of the terms of this Agreement become or are declared to be illegal or otherwise unenforceable by any Court of competent jurisdiction, such term(s) shall be null and void and shall be deemed deleted from this Agreement.  All remaining terms of this Agreement shall remain in full force and effect. Notwithstanding the foregoing, if this paragraph becomes applicable and, as a result, the value of this Agreement is materially impaired for either party, as determined by such party in its sole discretion, then the affected party may terminate this Agreement by written notice to the other.

14.5 Attorneys’ Fees. In any suit or proceeding relating to this Agreement, the prevailing party will have the right to recover from the other its costs and reasonable fees and expenses of attorneys, accountants, and other professionals incurred in connection with the suit of proceeding, including costs, fees and expenses upon appeal, separately from and in addition to any other amount included in such judgment.  This provision is intended to be severable from the other provisions of this Agreement, and shall survive and not be merged into any such judgment.

14.6 No Agency. This Agreement does not create any agency, partnership, joint venture, or franchise relationship.  Neither party has the right or authority to, and shall not, assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever.

14.7 No Third Party Beneficiary. It is the intention of the parties that no person or entity other than TechChange and Client is or shall be entitled to bring any action to enforce any provision of this Agreement against either of the parties, and the covenants, undertakings and agreements set forth herein shall be solely for the benefit of, and shall be enforceable only by, the parties hereto.

14.8 Survival. Rights under Sections 7, 9 and 10 shall survive the termination of this Agreement.

14.9 Entire Agreement. This Agreement is the complete agreement between the parties hereto concerning the subject matter of this Agreement and replaces any prior oral or written communications between the parties. There are no conditions, understandings, agreements, representations, or warranties, expressed or implied, which are not specified herein.